SC dismisses Rafale review plea, says no to ‘roving and fishing enquiry’

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Published: November 15, 2019 5:45:17 AM

The Supreme Court on Thursday dismissed the review petitions against its December verdict in the Rafale deal for lack of merit and also refused to direct registration of a FIR into the Rs. 58,000-crore deal.

The Modi government had signed an agreement with France in 2016 for the purchase of Rafale fighter jets.

In a morale booster for the Narendra Modi government, the Supreme Court on Thursday dismissed the review petitions against its December verdict in the Rafale deal for lack of merit and also refused to direct registration of a FIR into the Rs. 58,000-crore deal.

Reiterating its stand, the SC said it “did not consider it appropriate to embark on a roving and fishing enquiry”. “We decline to, once again, embark on an elaborate exercise of analysing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters,” it said.

The Supreme Court bench comprised of Chief Justice Ranjan Gogoi and justices Sanjay Kishen Kaul and KM Joseph.

“We cannot lose sight of the fact that we are dealing with a contract for aircraft, which was pending before different governments for quite some time and the necessity for those aircrafts has never been in dispute,” the apex court said, while rejecting the pleas, including one filed by former Union ministers Yashwant Sinha and Arun Shourie, and activist lawyer Prashant Bhushan, for re-examination of the apex court’s December 14 verdict. The court had earlier ruled that there was no occasion to doubt the decision-making process of the government in the procurement of 36 Rafale fighter jets from French firm Dassault Aviation.

However, Justice Joseph, who wrote a separate but concurring judgment, said that the December order would not prevent the CBI from taking action on the complaint in accordance with law and subject to the investigating authority obtaining previous approval under Section 17A of the Prevention of Corruption Act.

The Modi government had signed an agreement with France in 2016 for the purchase of Rafale fighter jets. Under the deal, French firm, Dassault Aviation was to supply 36 Rafale fighter jets to India in flyaway condition.

On the aspect of pricing, Justice Kaul, writing the judgment for the Bench, said that “the court satisfied itself with the material made available. It is not the function of this court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the court. The internal mechanism of such pricing would take care of the situation. On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.”

While stating that the court has no jurisdiction to determine each aspect of the contract, the top court said that all aspects were considered by the competent authority and the different views expressed considered and dealt with.

On the choice of induction of Anil Ambani’s Reliance Aerostructure as an offset partner, the judges said that “the decision of whom to engage as the offset partner was a matter left to the suppliers (Dassault) and we do not think that much can be made out of it”.

On petitioners’ contention that there was contradictory material in the decision-making process, the Bench said: “…We, however, found that there were undoubtedly opinions expressed in the course of the decision-making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it.”

In the review pleas, the petitioners had cited leaked documents that stated that the defence ministry had in 2015 objected to “parallel negotiations” conducted by the Prime Minister’s Office with France. It had also quoted from a dissent note written by three senior defence ministry officials who were the domain experts on the seven-member Indian negotiating team.

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